The old NHS complaints procedure contained what many regarded as both a useful and sensible proviso that when a complainant indicated an intention to pursue litigation, the complaints process should cease. The new procedure, introduced on 1 April 2009, does not contain such a provision. This means that a trust could be placed in the unenviable position of having to manage in parallel both a formal complaint and threatened litigation on the same subject matter. Such a situation would give rise to potential difficulties with regard to the question of whether documentation had arisen primarily for the purposes of the complaint, and would thus be disclosable, or had arisen primarily for the purposes of the litigation when it would be privileged and not disclosable. In extreme cases, thought may have to be given to whether the NHSLA should be kept advised of both the complaint and the litigation processes.

To add to the challenges of the new system, the understanding that compensation payable as part of a complaints process should be limited to matters such as the reimbursement of expenses, for example, loss of earnings incurred for the purposes of pursing a complaint, appears not to be shared by the Care Quality Commission whose chief executive has indicated that she may be prepared to consider recommending significant payments as compensation as a part of the complaints process. The present position is that any such payment would not be reimbursed by the NHSLA and it is hoped that further guidance will be available shortly.